JUSTICE KENNEDY THE SWING VOTER & HIS CRITICS I
Douglas M. Parker†
N DECEMBER 2007,
Edward Lazarus, a former Supreme Court
clerk and the author of a 1998 book on the Court, Closed
Chambers, observed:
If the commentary is to be believed, the Court’s pivotal
justice, Anthony Kennedy, must be the most pompous,
self-aggrandizing, and unjustifiably self-confident jurist in
Supreme Court history. This verdict comes to us not
merely from left- or right-wing partisans disappointed by
the ideologically-diverse causes (from gay rights, to the ban
on partial birth abortion) that Kennedy has championed. In
addition to these usual suspects, mainstream commentators
– usually circumspect in their criticisms of the Court – are
currently engaged in a veritable orgy of Kennedy-bashing.1
It might be expected that Justice Kennedy, as a “swing vote” on
the Court, would receive criticism from all directions. Yet, as Lazarus pointed out, the attacks on Kennedy have been far harsher than
†
1
Douglas Parker was a partner in Mudge Rose Guthrie Alexander & Ferdon when he retired
from the private practice of law in 1995. Since then he has engaged in a variety of interesting projects, including writing the authorized biography of Ogden Nash. See OGDEN NASH:
THE LIFE & WORK OF AMERICA’S LAUREATE OF LIGHT VERSE (Ivan R. Dee 2005).
Edward Lazarus, “The Current Supreme Court Term, and the Pivotal Role of
‘Swing’ Justice Anthony Kennedy,” FindLaw, December 6, 2007.
11 GREEN BAG 2D 317 Douglas M. Parker those visited upon Justice Sandra Day O’Connor, Kennedy’s predecessor as the most prominent swing vote on the Court. Although
Lazarus acknowledged that he had been “an early and not infrequent
Kennedy critic,” he had come to think that criticism of Kennedy had
gone too far, and he sought to counter “the now fashionable view
that the Court’s pivotal (and thus most powerful) member is best
viewed as a dangerous egomaniac.”2
The “mainstream commentary” cited by Lazarus included an article by Jeffrey Rosen,3 and books by Jan Crawford Greenburg4 and
Jeffrey Toobin.5 Lazarus, however, did not enumerate specific criticisms or attempt to assess their merits. Given the importance of
Kennedy’s position on the Court, a closer look at the bill of particulars seems called for.
Although Lazarus suggested that Kennedy had been set upon
from both left and right, the most strident criticism of Kennedy has
originated from the political right before drifting into the mainstream. Initially, such criticism may appear puzzling because Kennedy’s overall record as a Justice has remained consistently and
identifiably conservative: he has shown less of a leftward shift than
either Justice O’Connor or Justice David Souter.6 In fact, the conservative indictment of Justice Kennedy’s jurisprudence – as to both
style and substance – rests almost entirely on his opinions in only
2
3
4
5
6
Ibid.
Jeffrey Rosen, “The Arrogance of Justice Anthony Kennedy,” The New Republic,
June 18, 2007. Mr. Rosen is a professor at George Washington University Law
School and the legal affairs editor of The New Republic.
Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control
of the United States Supreme Court (New York: Penguin Press, 2007). Ms. Greenburg is a graduate of the University of Chicago Law School and a correspondent
for ABC News.
Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York:
Doubleday, 2007). Mr. Toobin is a senior legal analyst for CNN and a staff writer
for The New Yorker.
Lee Epstein, Andrew D. Martin, Kevin M. Quinn & Jeffrey A. Segal, “Ideological
Drift Among Supreme Court Justices: Who, When and How Important,” 104
Northwestern University Law Review No. 4 (Fall, 2007) 1484, 1504-09.
318 11 GREEN BAG 2D Justice Kennedy four cases: Lee v. Weisman (holding that a non-sectarian prayer at a
high school graduation ceremony violated the First Amendment);
Planned Parenthood v. Casey (modifying Roe v. Wade but upholding the
constitutional protection of a right to an abortion); Lawrence v. Texas
(holding unconstitutional a law that made homosexual sodomy a
crime); and Roper v. Simmons (holding that the Eighth Amendment
barred execution for a crime committed before the defendant was
eighteen years old).7
Those are, of course, cases that, in the eyes of Justice Antonin
Scalia and others, have put the Supreme Court – and Justice Kennedy – on the wrong side of a “culture war.” Such cases represent
only a small portion of Kennedy’s work on the Court, but the
charged emotions they stimulated have given them prominence.
Moreover, some of the resentment toward Kennedy may be attributable to the fact that, as a practicing Roman Catholic, he had been
expected to provide a reliable conservative voice on social, as well
as economic and political, issues. Conservatives’ disappointment
with Justice Kennedy perhaps found its most vivid expression in the
oft-quoted pronouncement of James C. Dobson, the influential
founder of Focus on the Family, that Kennedy is “the most dangerous man in America.” But others were not far behind. Highly critical articles have appeared in conservative publications such as The
National Review, The Weekly Standard, Human Events, and The American
Spectator.
The outrage at Kennedy’s perceived apostasy appears to have
been augmented by other factors. As indicated by Lazarus, a common denominator in the negative portrayals of the Justice is an unflattering view of the Kennedy persona, and in particular the Kennedy ego. Indeed, “pompous” appears to be the epithet of choice for
Kennedy critics. But despite the frequency with which that label has
been applied, the grounds for it have been consistently vague or
seemingly trivial. Anonymous law clerks, current or former, appear
7
Lee v. Weisman, 505 U.S. 577 (1991); Planned Parenthood v. Casey, 505 U.S. 833
(1992); Lawrence v. Texas, 539 U.S. 558 (2003); Roper v. Simmons, 543 U.S. 551
(2005).
SPRING 2008 319 Douglas M. Parker to be one source for the characterization, but direct quotes or specific examples, even from undisclosed sources, are rare.8
The appearance of Kennedy-bashing in mainstream commentary
is relatively recent. In 1996, Jeffrey Rosen wrote a profile of Justice
Kennedy for The New Yorker that for several years was regarded as
the most successful attempt to capture his personality.9 The article
was based on lengthy interviews at Salzburg University, where
Kennedy was teaching a summer course, as he has every year since
1987. Although Rosen later came to have a distinctly unsympathetic
view of Kennedy, his 1996 article was a generally admiring portrait.
Making only glancing (and unexplained) references to “a selfdramatizing tendency” and a “weakness for innocent pomp,” it
conveyed the impression of a relatively unassuming individual
prepared to discuss his approach to the law with some candor.
In 2007, the landscape would change. Jan Crawford Greenburg’s Supreme Conflict gave an essentially even-handed account of
the various criticisms of Justice Kennedy expressed by conservatives
without appearing to endorse them. Greenburg, however, did
comment that Kennedy had developed an “aura of pomposity” and
she took pains to describe the décor in his office. As she saw it, the
office “speaks of governmental authority and power, as well as the
pomp and splendor that went with it in the past.”10
In Jeffrey Toobin’s book, The Nine, published later that year,
Toobin initially summarized Kennedy’s traits with some balance,
referring to “his earnestness and his ambition, his naiveté and his
8
One exception appears in a 2007 online article in Newsweek which reported that
“A few of Kennedy’s former clerks interviewed by Newsweek allow that he can be
a little pompous. ‘He thinks he is the living embodiment or transmitter of the
nation’s bedrock values,’ says one, who refused to be identified criticizing his
former boss.” On the other hand, the article noted that all of the clerks
interviewed had portrayed Kennedy as “gracious, decent, fair-minded and
intellectually curious about many things ranging far beyond the law.” Stuart
Taylor, Jr. & Evan Thomas, “The Power Broker,” www.newsweek.com/id/
33225.
9
Jeffrey Rosen, “The Agonizer,” The New Yorker, November 11, 1996.
10
Greenburg, Supreme Conflict, 112, 160-161.
320 11 GREEN BAG 2D Justice Kennedy grandiosity, his reverence for the law and his regard for his own
talents.”11 Nevertheless, a number of Toobin’s subsequent references to Kennedy were unflattering. Paralleling Greenburg’s
treatment of Kennedy, Toobin provided an even more detailed description of his Supreme Court office (even to the placement of the
Justice’s desk) and concluded solemnly that “It was an office that
tried hard, maybe too hard to impress.”12
In his 2007 New Republic article, Jeffrey Rosen saw Justice
Kennedy quite differently than he had in 1996. Rosen’s portrayal of
Kennedy now bristled with hostility from start to finish and was
crammed with innuendo and unflattering speculation. In assessing
Kennedy’s personal qualities, Rosen placed considerable weight on
the Justice’s activities outside the Court: he began with an account
of how Kennedy, a lifelong Shakespeare buff, had presided over a
mock trial of Hamlet at the Kennedy Center, and concluded with a
description of Kennedy’s appearance (accompanied by First Lady
Laura Bush) to moderate “a discussion about American values after
September 11 at a public high school in Washington.” Rosen’s critique of Kennedy’s pedagogical style at the high school (“students
struggled to get a word in edgewise [as] Kennedy kept answering
his own questions and returning to his favorite themes”) contrasted
sharply with his earlier appraisal of Kennedy at Salzburg (“Justice
Kennedy is a very good teacher. He is passionate about his subject
and respectful of even the slowest students.”). Rosen’s 2007
accounts were plainly intended to support his view that Kennedy
“seems most at home when he is lecturing others about morality.”
Kennedy’s alleged pomposity, from office décor to disquisitions
on Hamlet, would scarcely be worth discussing but for the implication that they illumine his record on the Court. One aspect of that
record that has drawn frequent fire is Kennedy’s writing style.
Greenburg, for example, commented that Kennedy “appeared to
have visions of grandeur and a taste for the rhetorical highlife.”13
11
Toobin, The Nine, 53.
Id. at 147.
13
Greenburg, Supreme Conflict, 110.
12
SPRING 2008 321 Douglas M. Parker Toobin also claimed, as others had, that Kennedy wrote to be
quoted, and he provided a colorful detail (presumably derived from
an anonymous law clerk): “Seated at his keyboard typing furiously,
Kennedy always labored most closely on the sections of opinions
that might be quoted in the New York Times.”14 If the account is accurate, Kennedy’s efforts with his prose have been largely selfdefeating. Although he has been quoted in the Times on occasion,
the reviews of many commentators have been critical.
The examples of Kennedy’s writing most often held up for disapproval are found in his contributions to the Joint Opinion in
Planned Parenthood v. Casey that he co-authored with Justices
O’Connor and Souter. The opening sentence of the opinion declaimed that “Liberty finds no refuge in a jurisprudence of doubt.”
Toobin criticized both the style and the thought it expressed:
In plain English, Kennedy meant that law had to be consistent and predictable, but there was in fact a noble lineage to
a “jurisprudence of doubt.” Theorists like Oliver Wendell
Holmes Jr. and Learned Hand thought it was critical for
judges to doubt their conclusions were correct for all time.15
Professor Mark Tushnet (then of Georgetown, now of Harvard)
had commented similarly in A Court Divided, quoting Holmes on the
virtue of doubt.16 What Toobin and Tushnet failed to acknowledge,
however, was the unique context in which Kennedy was writing. In
the succeeding two sentences, he pointed out that the United
States, as amicus curiae, was asking for the sixth time in a decade to
have the Court overrule Roe v. Wade. That is a circumstance which
might have tried even the patience of Holmes if he concluded, as
Kennedy and his colleagues had, that Roe should not be overruled.
Thus, it was not surprising for the Joint Opinion to say “Enough is
enough” (and for Kennedy to attempt a loftier version of that sentiment).
Kennedy provided an even more attractive target for criticism
14
Toobin, The Nine, 52.
Id. at 56.
16
Mark Tushnet, A Court Divided (New York: W.W. Norton, 2005), 215.
15
322 11 GREEN BAG 2D Justice Kennedy when he attempted to define the liberty interest in the Fourteenth
Amendment that Casey invoked to preserve the right to an abortion:
“At the heart of liberty is the right to define one’s own concept of
existence, of meaning, of the universe, and of the mystery of life.”
As Toobin commented tartly, “Even many supporters of Roe would
have trouble defining ‘the mystery of human life,’ much less asserting that it was protected by the Constitution.” Such phrases, Toobin
observed, “sent Scalia into a genuine rage,” and he noted that when
Kennedy repeated the language in Lawrence v. Texas, Scalia referred
to it caustically as the “famed sweet-mystery-of-life passage.”17
The imprecision of Kennedy’s language obviously left it vulnerable to challenge. On the other hand, neither Justice William O.
Douglas in Griswold v. Connecticut (striking down a ban on use of
contraceptives) nor Justice Harry Blackmun in Roe v. Wade had been
particularly successful in defining, and tying to the Fourteenth
Amendment, the liberty (or privacy) interest on which they were
relying. It seems unlikely that any rhetorical modesty on Kennedy’s
part would have made the result in Roe or Casey any more acceptable to conservatives.
While the criticism of Kennedy’s prose undoubtedly has some
basis, it seems considerably overstated when viewed in the light of
the entire body of his jurisprudence. The majority of his opinions
simply do not feature the rhetorical flourishes with which he has
come to be identified. The more significant question is the extent to
which Kennedy’s personality has influenced, or even dictated, the
positions he has taken in cases before the Court.
In Closed Chambers, Lazarus reported the claim by conservatives
that Justice Kennedy is susceptible to the “Greenhouse Effect.” The
term, a play on the vocabulary of global warming, refers to Linda
Greenhouse, the longtime Supreme Court correspondent for the
New York Times, and suggests that some Justices on the Court might
be influenced by a desire for favorable comment from Greenhouse
or other members of the “liberal elite” in the media.18 In fact, how17
18
Toobin, The Nine, 56, 191.
Lazarus, Closed Chambers, 428; Greenburg, Supreme Conflict, 161.
SPRING 2008 323 Douglas M. Parker ever, there is no evidence that any of Kennedy’s opinions stemmed
from a desire to please the “liberal media.” Indeed, the claim is
largely refuted simply by the numerous opinions and votes by Kennedy with which liberals in and outside the media have vigorously
and predictably disagreed.
Toobin did not cite the Greenhouse Effect, but he posited an
equally questionable theory of “influence” on Kennedy. The theory,
a central thesis of The Nine, concerned Bush v. Gore and the supposed
impact that the decision had on Kennedy:
Of the five Justices in the majority, Kennedy had the hardest time with the aftermath of Bush v. Gore. He had spent
most of his adult life as a judge and he had a special reverence for the profession, “the guild of judges” he sometimes
called it. There would be, it turned out, two Anthony
Kennedys on the Supreme Court – the one before December 12, 2000, and the one after – and his transformation
was surely one of the most unexpected legacies of this epochal case.
The Justice Kennedy of the post-Bush v. Gore era was
shaped by one influence in particular – his exposure to foreign law and foreign judges. After 2000, in part to escape
the political atmosphere in Washington, Kennedy deepened
his commitment to the broader world and his journeys
changed him. Given Kennedy’s pivotal role, the Court and
the nation would never be the same. The paradox of Bush v.
Gore is that the justices’ gift of the presidency to a conservative sent the court in its most liberal direction in years.19
Toobin’s thesis has a number of components, none of which appears to survive scrutiny. To begin with, Toobin cited no source for
his assertion that, of the Justices in the majority in Bush v. Gore,
Kennedy “had the hardest time” living with the decision, and it has
no support in accounts of the case by other commentators with access to the Justices and their clerks.20
19
20
Toobin, The Nine, 182.
See Greenburg, Supreme Conflict, 31-32; Joan Biskupic, Sandra Day O’Connor: How
the First Woman on the Supreme Court Became Its Most Influential Justice (New York:
324 11 GREEN BAG 2D Justice Kennedy Even more tenuous is Toobin’s claim that Kennedy’s feelings
about Bush v. Gore led him to increase his foreign travels and his interaction with the “broader world.” This claim is not only undocumented, but is seriously undermined by an article Toobin himself
had written only two years before in The New Yorker.21 In that article, Toobin gave a detailed account of Justice Kennedy’s international travels and foreign connections extending over nearly two
decades, but he made no suggestion that those activities had increased subsequent to Bush v. Gore or had been stimulated in any
way by that case.
Toobin’s 2005 article also made no claim that Kennedy’s international experiences had propelled him, let alone the full Court, in
a “more liberal direction” as a general matter. And such a claim
would find little support in Kennedy’s record on the Court.22 Toobin’s New Yorker article did imply that Kennedy’s teaching at Salzburg and his contacts with foreign jurists may have influenced his
decisions in Lawrence v. Texas and Roper v. Simmons, but those two
cases hardly constitute a direction. Moreover, even that element of
Toobin’s claim is dubious.
In The Nine, Toobin emphasized Kennedy’s citation in Lawrence
of the decision by the European Court of Human Rights in Dudgeon
v. United Kingdom in 1981. Dudgeon had held that laws criminalizing
sodomy were invalid under the European Convention on Human
Rights, but the Supreme Court had made no reference to it in 1986
when it upheld a similar law in Bowers v. Hardwick. According to
Toobin, the “pre-Salzburg Kennedy – even the pre-Bush v. Gore justice – would never have made such a reference.”23 Toobin, however, ignored the fact that in 1986 – before Kennedy had been appointed to the Court or begun teaching at Salzburg – he had cited
the Dudgeon decision in a speech at Stanford.24 Moreover, in his
HarperCollins, 2005), 309-310.
Toobin, “Swing Shift,” The New Yorker, September 12, 2005.
22
Epstein et. al, supra, n. 6.
23
Toobin, The Nine, 190.
24
Anthony M. Kennedy, “Unenumerated Rights and the Dictates of Judicial Re21
SPRING 2008 325 Douglas M. Parker 2005 interview with Toobin, Kennedy had even expressed his surprise that Dudgeon had not been cited by the lawyers in Bowers v.
Hardwick.25
Kennedy’s opinion in Roper v. Simmons, striking down the death
penalty for defendants under eighteen at the time of their crimes,
followed the methodology that Justice John Paul Stevens had employed in Atkins v. Virginia.26 In Atkins, Stevens had found a national
consensus against the execution of the mentally retarded by aggregating the states that did not permit the death penalty and the states
that permitted the death penalty but did not permit execution of
the mentally retarded. In Roper, Kennedy pointed out that the same
numerical breakdown of state laws prevailed with respect to the
execution of juveniles. He then referred to the laws of other countries as “confirmation” of his determination that imposition of the
death penalty on juvenile offenders was “disproportionate.”27
As Toobin observed, Justice Kennedy’s opinion provoked
sharply negative reactions from a variety of leaders on the political
right.28 On the other hand, in an age of globalization, attention to
foreign legal authorities by the Supreme Court is almost certain to
increase rather than diminish. Whether one views that prospect
favorably or unfavorably, the criticism of (or credit to) Justice Kennedy for his citation of foreign authorities seems considerably overdone. He has, after all, cited foreign law in only two cases and it is
by no means clear that in either case ignoring foreign law would
have produced a different result.
Perhaps the harshest and most wide-ranging assessment of Justice Kennedy’s persona, on and off the bench, is found in Rosen’s
2007 cover article for The New Republic. One respected academic
who commented on the article, Professor Michael Dorf (of Columbia), pointed out that there is “a difference between fair-minded
straint,” www.andrewhyman.com/1986kennedyspeech.pdf.
Toobin, “Swing Shift.”
26
536 U.S. 304 (2002).
27
543 U.S. at 571.
28
Toobin, The Nine, 198-199.
25
326 11 GREEN BAG 2D Justice Kennedy criticism and personal attack” and concluded that Rosen had
“crossed the line.” Indeed, Dorf was moved to observe that “The
tone and content are so over the top that one wonders whether
Rosen believes that Kennedy personally harmed Rosen in some
way.”29
As he acknowledged, Dorf is a former law clerk to Justice Kennedy and that experience might have influenced the strength of his
reaction. Nevertheless, Dorf’s speculation as to Rosen’s motivation
finds some support if one compares Rosen’s New Republic article to
his 1996 profile of Kennedy in The New Yorker. The earlier article
covered much of the same territory, but any criticism was muted
and the overall tone was positive.
The title of Professor Rosen’s New Republic article “The Arrogance of Justice Anthony Kennedy,” succinctly conveys its message.
Justice Kennedy is characterized not only as arrogant on and off the
bench, pompous, and self-important, but also, more significantly,
as seeking to impose his own moral vision on the Court.30 This
sweeping attack led Rosen from allegations of pomposity to a focus
on even more ephemeral targets: Kennedy’s supposed beliefs and
motivations. Here, curiously enough, Rosen did not rely on his own
interviews with the Justice in 1996, but instead attempted to deconstruct an interview that Kennedy had given to the Academy of
Achievement.31
In the Academy interview, Kennedy mentioned that he had not
particularly enjoyed grade school, that he had sought an escape in
reading, and that his father had been prompted to get him a job as a
junior page in the State Senate when he was in the fourth grade.
From that relatively modest acorn, and the fact that, even today,
Kennedy retains a keen interest in literature, Rosen proceeded to
29
http://michaeldorf.org/2007/06/jeffrey-rosen-on-justice-kennedy.html.
Rosen himself is not entirely without self-regard: his biography on the law school
website quotes the Los Angeles Times as calling him “the nation’s most widely read
and influential legal commentator.”
31
The interview may be found at www.achievement.org.
30
SPRING 2008 327 Douglas M. Parker erect a blossoming tree of pop psychology. After attempting to
catalog Kennedy as a grade school misfit, Rosen continued by describing him as someone who is “uncomfortable with real conflicts
among real people [and] took refuge from an early age in the morality tales he found in fiction.” As a result, according to Rosen, “Kennedy’s world seems powerfully shaped by the ideas he has absorbed
from novels and plays.”
Rosen’s curious speculation that Kennedy is uncomfortable with
the problems of real people was unsupported by any evidence, and
conspicuously ignored Kennedy’s successful and diversified law
practice in Sacramento. In that practice, Kennedy handled not only
civil and criminal litigation, but also corporate, estate planning, tax,
and a variety of other matters. It was a practice, one suspects, that
gave Kennedy rather more experience in dealing with real problems
of real people than might be claimed by Professor Rosen from his
career in journalism and academia.
Similarly, Rosen provided little support for his claim that Kennedy has been unduly influenced by literature. It does not seem remarkable for a Supreme Court Justice to be well read and even to
have some thoughts (such as Kennedy had expressed in the Academy interview) as to what might be taken from works ranging from
Hamlet to Orwell’s Nineteen Eighty-four. In Rosen’s eyes, however,
Kennedy’s literary tastes become almost sinister. Seizing on a Kennedy comment on Nineteen Eighty-Four, that governments “want to
plan what you think, and this must never happen,” Rosen spun off
into his own soliloquy:
As a justice, Kennedy would seek to ensure that it never
does happen – striking down what he viewed as dystopian
laws that prevent Americans from enjoying the abstractions
about liberty he cherished from his excursions into fiction.
Rosen did not identify just what “dystopian laws” would be
struck down, but it is clear from the balance of the article that he
had in mind the abortion and sodomy laws at issue in Casey and Lawrence. But a connection between Kennedy’s reaction to Nineteen
Eighty-Four and his opinions in those cases seems a considerable
stretch.
328 11 GREEN BAG 2D Justice Kennedy Rosen also recounted a story about Kennedy that has probably
been cited by Kennedy’s critics as often as any passage in his opinions:
Even today, Kennedy’s world seems powerfully shaped by
the ideas he has absorbed from novels and plays. Many of
his most embarrassing moments have come from his habit
of comparing himself to archetypes from literature. Before
handing down his decision in Planned Parenthood v. Casey, he
told a reporter whom he had invited into his chambers,
“Sometimes you don’t know if you’re Caesar about to cross
the Rubicon or Captain Queeg cutting your own tow line.”
He then excused himself saying that he needed to “brood.”
(In passing, one may note the sly references to “many” of Kennedy’s
“most embarrassing moments” and his “habit” of comparing himself
to literary figures, implying the existence of a large catalog of such
moments. Yet anyone who has read the Rosen article is likely to
believe that if the writer had been aware of other examples, he
would have shared them.)
Moving to the substance of this well-traveled anecdote, it might
quickly be agreed – as Kennedy undoubtedly would today – that
making offhand comments to a reporter, just before the announcement of a major decision, is not a particularly good idea. Yet Kennedy’s comment was one that, if offered by another Justice, might
well have been regarded as an insignificant, or even charming, moment of self-deprecation. In any case, there is not the slightest basis
for thinking that either Caesar or Captain Queeg had any influence
on Kennedy’s decision in Casey.
Rosen then turned to Kennedy’s long-standing reputation for
agonizing over cases before the Court. Consistent with that reputation, Rosen’s 1996 article in The New Yorker was entitled “The Agonizer.” In it, Rosen rejected the “conservative caricature” of Kennedy as yielding to “elite liberal opinion,” and added approvingly:
“In fact, his struggles to make up his mind show, in some respects,
precisely the qualities one would hope to find in a Supreme Court
Justice.”
By 2007, however, those positive qualities had disappeared from
SPRING 2008 329 Douglas M. Parker Rosen’s perception. Rosen now concluded that Kennedy “seems to
agonize not because he is genuinely ambivalent or humble but because he thinks agonizing is something a great judge should do, to
show that he takes seriously the awesome magnitude of his task.”
Warming to his subject, Rosen then made the remarkable assertion
that Kennedy really doesn’t agonize at all, but engages in “the Blink
theory of jurisprudence.” Kennedy, he wrote:
… makes a spot judgment about how the world should be,
then expresses it as an ideal against which the world must
be measured.
The purported basis of Rosen’s latter assessment was a truncated
quote from Kennedy’s Academy interview. In fact, the full quote
made the point that snap judgments could not be trusted, but had to
be examined and reexamined:
But after you make a judgment you must then formulate
the reason for your judgment into a verbal phrase, into a
verbal formula. And then you have to see if that makes
sense, if it’s logical, if it’s fair, if it accords with the law, if
it accords with the Constitution, if it accords with your
own sense of ethics and morality. And if at any point along
this process you think you’re wrong you have to go back
and do it all over again.32
The net effect of Rosen’s editing was to distort Kennedy’s view of
judging by approximately 180 degrees.
Rosen’s most fundamental argument was that Kennedy’s opinions attempt to impose his own moral vision, “constructing morality
plays in which he occupies the central role.” By contrast, Rosen’s
1996 New Yorker article had credited Kennedy with keeping his own
moral views out of his opinions. Rosen had cited the passionate personal objections to abortion that Kennedy expressed to his class in
Salzburg and Kennedy’s insistence that when it came time to decide
Casey “he couldn’t impose his personal views on the nation.” Indeed,
Rosen argued that “those who applaud [Kennedy’s] very abstract
32
Academy Interview.
330 11 GREEN BAG 2D Justice Kennedy vision of the state’s obligation to be neutral about morality in the
abortion and gay-rights cases can hardly object when [he] applies a
similarly abstract vision of neutrality in cases that question affirmative-action programs or require wholesale redistricting of congressional maps.” Rosen, of course, was entitled to change his mind between 1996 and 2007, but on balance his earlier appraisal seems
closer to the mark.
Toward the end of his New Republic article, Rosen briefly acknowledged the “core of a case” for Kennedy: “that he is a moderate, decent, fair-minded person rather than a judicial ideologue –
no small achievement in a polarized age.” But he immediately returned to the attack by comparing Kennedy unfavorably with Justice O’Connor. The latter’s opinions, he said, were narrowly
drawn and “[b]ecause she offered few principles to support her rulings, it was difficult to extend them to future cases.” Kennedy, by
contrast said Rosen, “prefers opinions that are broad and deep” and
“attempts to identify a sweeping principle of justice.”
Ironically, Rosen had written an article in 2001 in the New York
Times Magazine in which he had criticized the narrowness of
O’Connor’s opinions and, on that very ground, compared her unfavorably to Kennedy.33
In the 2001 article, Rosen had accused O’Connor of “judicial
imperialism,” but in a 2005 interview, he reassigned that deficiency
to Justice Kennedy. Describing himself as a “liberal advocate of judicial restraint,” Rosen said that he “sympathize[d] with the criticism
of Justice Kennedy in some of those areas involving abortion, gay
rights and the application of international law to the culture wars.”
It was Justice Kennedy, Rosen now claimed, who had “embraced a
rhetoric of judicial supremacy.”34
Whatever the shift in Rosen’s perceptions, judicial restraint (or
its absence) is obviously a fair ground for debate. So, indeed, are
Justice Kennedy’s various opinions. That debate, however, is not
33
34
Jeffrey Rosen, “Majority of One,” New York Times Magazine, June 3, 2001.
Jason DeParle, “In Battle to Pick Next Justice, Right Says Avoid a Kennedy,” The
New York Times, June 27, 2005.
SPRING 2008 331 Douglas M. Parker enriched by excursions into pop psychology, fanciful speculation as
to external “influences,” or ad hominem attacks. Justice Scalia is
well-known for his view that statutes should be interpreted and applied without attempting to divine legislators’ subjective intent.
Perhaps that would be a refreshing approach to considering the
opinions of Justice Kennedy. It is likely that it would result in a
more balanced and constructive appraisal of his contributions to the
Court.
332 11 GREEN BAG 2D